Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially Allowed(Cause number not stated in the judgment)· [2014] KEELRC 1242 (KLR)

Robert Karisa Kadenge v Kenya Kazi Services Ltd [2014] KEELRC 1242 (KLR)

Employment and Labour Relations Court
8 September 2014
RSRadido Stephen
1,608 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan employer must give a non-union employee one month's written redundancy notice directly and to the labour officer, or the termination is unfair.

What this practically means

#

Executive summary

#
The Claimant, originally employed in 2003 and later transferred to the Respondent, was terminated on account of redundancy by letter dated 2 October 2013. He sued claiming Kshs 4,562,585 for wrongful termination, severance pay, pay in lieu of notice and other dues. The Respondent adduced evidence of financial constraints and loss of client contracts, and asserted that redundancy notices were given to the Union, the Ministry of Labour and employees at a 2 September 2013 meeting. The Court found that although the Claimant was not a union member, the only written notification he received was the letter of 2 October 2013, effective the following day. Applying section 40(1)(b) of the Employment Act, 2007, and the Court of Appeal decisions in De La Rue and Kenya Airways, the Court held that a non-union employee is entitled to one month's written notice directly and to the local labour officer; the notice given was too short and did not conform to the statute, rendering the termination unfair on procedural grounds alone. The Court declined to examine whether there were valid operational reasons for the redundancy. It also flagged that the re-engagement contract, offering the minimum wage inclusive of house allowance, was invalid. The Court awarded one month's pay in lieu of notice (Kshs 10,912), severance pay (Kshs 62,953) and five months' compensation (Kshs 62,745), totalling Kshs 136,610 with interest from the date of judgment. The claim for lost salary up to retirement was rejected for want of evidentiary or statutory foundation, and, because parties failed to file submissions as directed, each party was ordered to bear its own costs.

Key legal issues

#
01

Procedural fairness in redundancy where employee is not a union member

Holding

The termination was unfair because the only written notification to the Claimant was the redundancy letter dated 2 October 2013, effective the next day, instead of one month's written notice to him and the local labour officer as required by section 40(1)(b).

Reasoning

The Court accepted that the Respondent notified the Union and the County Labour Officer, but since the Claimant was not a union member those notices did not assist. The letter of 2 October 2013 declared the redundancy rather than notifying of an impending one, and its one-day notice fell far short of the statutory one month. This breach alone rendered the termination unfair.

p. 3
02

Whether the Respondent had valid and fair reasons for the redundancy

Holding

Not determined; the Court declined to examine this once procedural unfairness was established.

Reasoning

Having found the termination unfair on the ground of non-compliance with the notification procedure in section 40(1)(b), the Court held it unnecessary to examine whether operational requirements justified the redundancy or whether the Respondent had proved valid reasons.

p. 3
03

Compensation under section 49(1)(c)

Holding

Award of five months' gross wages as compensation for the unfair termination.

Reasoning

The remedy is discretionary and the Court considered section 49(4) factors: the Claimant had served about 10 years and had not secured alternative employment. On his average monthly earnings of Kshs 12,549, compensation was assessed at Kshs 62,745.

p. 3
04

Validity of the re-engagement contract

Holding

The fixed-term contract providing Kshs 5,218 inclusive of house allowance was invalid as it fell below the prescribed minimum wage which was exclusive of house allowance.

Reasoning

Before awarding relief the Court noted that the re-engagement contract for the period 21 October 2013 to 21 January 2014 stipulated a wage below the statutory minimum wage for Mariakani, which was payable exclusive of house allowance.

p. 3

Legal principles established

#
  • Sections 40(a) and 40(b) of the Employment Act, 2007 provide for two different kinds of redundancy notifications depending on whether an employee was a member of a union or not
  • Both substantial justification and procedural fairness are mandatory requirements in challenges to redundancy
  • A non-union member must be notified of redundancy directly and in writing one month in advance, together with the local labour officer, under section 40(1)(b)
  • Section 49(1)(b) of the Employment Act, 2007 supports a claim for wages during the notice period, not loss of income to retirement

Court orders

#
  1. 1.Declaration that the termination of the Claimant's services through redundancy was unfair
  2. 2.Respondent to pay one month salary in lieu of notice of Kshs 10,912
  3. 3.Respondent to pay severance pay of Kshs 62,953
  4. 4.Respondent to pay compensation equivalent to five months gross wages of Kshs 62,745
  5. 5.Total award of Kshs 136,610 to attract interest from date of judgment until full payment
  6. 6.Each party to bear its own costs

Authorities

#

Legislation

  • Employment Act, 2007section 40
  • Employment Act, 2007section 40(1)(b)
  • Employment Act, 2007section 40(1)(f)
  • Employment Act, 2007section 40(1)(g)
  • Employment Act, 2007section 49(1)(b)
  • Employment Act, 2007section 49(1)(c)
  • Employment Act, 2007section 49(4)

Cases cited (3)

  • Kenya Airways Ltd v Allied & Aviation Workers Union Kenya & Ar
    Nairobi Civil Appeal No. 46 of 2013
  • Thomas De La Rue (K) Ltd v David Opondo Omutelema
    (2013) eKLR
  • KUDHEIHA v Mombasa Sports Club
    (2014) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007; Employment and Labour Relations Court Act)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Robert Karisa Kadenge v Kenya Kazi Services Ltd [2014] KEELRC 1242 (KLR)", Case Analysis (2014). (Cause number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1242/eng@2014-09-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.